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2019 DIGILAW 2517 (MAD)

J. Pugalendhi v. State

2019-09-20

T.KRISHNAVALLI

body2019
JUDGMENT : T. KRISHNAVALLI, J. 1. This Criminal Revision is directed against the judgment, dated 17.02.2015 passed by the II Additional District and Sessions Judge, Thanjavur, in Crl. A. No. 74 of 2014, confirming the judgment of the Judicial Magistrate No. II, Thanjavur, in C.C. No. 18 of 2008, dated 18.11.2014. 2. The case of, the prosecution is that on 23.10.2007 at about 3.30 am, the accused drove his vehicle from Madurai to Thanjavur and while he was coming near Thirukanurpatti on Thanjavur Pudukkottai Road near one petrol bank, the accused drove the bus TN-49-N-1558 in a rash and negligent manner and dashed against the left side parked lorry and thereby caused death to two persons and injuries to many persons, who are the passengers of the bus. The Inspector of Police attached to Vallam Police Station, Thanjavur District has filed a final report under Sections 279, 337, 338 (2 counts) and 304(A)(2 counts) IPC against the accused examining the witnesses. 3. In the trial court, 14 witnesses were examined and 20 Exhibits and 1 material object were marked. When the accused was questioned about the incriminating circumstances, he denied the same. The trial court convicted the revision petitioner and sentenced him to undergo SI for one month each under Section 279 and 337 IPC and 3 months SI for each count under Section 338(2 counts) IPC and 1 year SI for each count under Section 304(A) (2 counts) IPC and ordered to run concurrently. Aggrieved by the conviction and sentence passed by the trial court, the revision petitioner filed an appeal in C.A. No. 74 of 2014, which was heard by the II Additional District and Sessions Judge, Thanjavur. The first appellate Court had also confirmed the findings of the trial court. Hence, this criminal revision. 4. Aggrieved by the conviction and sentence passed by the trial court, the revision petitioner filed an appeal in C.A. No. 74 of 2014, which was heard by the II Additional District and Sessions Judge, Thanjavur. The first appellate Court had also confirmed the findings of the trial court. Hence, this criminal revision. 4. The learned counsel for the revision petitioner accused submitted that the prosecution has failed to establish the ingredients required for all the offences, with which he stood charged and convicted him for the said offences and none of the witnesses have spoken that the accused has driven the vehicle either rashly or negligently and there is no specific allegation of negligence as against the accused in driving the vehicle and the eye witnesses are interested witnesses and the prosecution has failed to prove the case beyond reasonable doubt and the accused is entitled to acquittal and prays that the criminal revision may be allowed. 5. On the other hand, the learned Government Advocate (Criminal side) appearing for the respondent/State submitted that the courts below appreciated the evidence in a proper manner and believed the evidence of the eye witnesses and having regard to the nature of the offences, convicted the revision petitioner for rash and negligent driving of the vehicle and passed proper sentence, which does not require any interference by this court and the accused is not entitled for acquittal and prays that the criminal revision may be dismissed. 6. Heard both sides and perused the materials available on record. 7. PW-1 is the injured and he gave Ex.P1 Complaint. PW-1 in his complaint stated-that on 23.10.2007 at about 3.30 am, the accused proceeded from Madurai to Thanjavur and when the bus coming near Thirukanurpatti on Thanjavur-Pudukkottai road near one petrol bunk, at that time, the accused drove his vehicle in a rash and negligent manner and dashed against the lorry, which was parked on the left side of the road and thereby caused the death of two persons and injuries to so many persons, who are the passengers in the bus and the injured were taken to the Government Hospital, Thanjavur and then, he gave Ex.P1 complaint statement to the police station. 8. 8. PW-1 during his evidence stated that on 23.10.2007 at 3.30 am the accused-proceeded from Madurai to Thanjavur and while the bus was coming near Thirukanurpatti on Thanjavur-Pudukkottai road near one petrol bunk, at that time the accused drove his vehicle in a speedy manner and dashed against a lorry, which was parked on the side of the road and thereby caused the death of two persons and injuries to several persons and they were taken to the Government Hospital, Thanjavur, for taking treatment and he gave Ex.P1 complaint statement to the police. PW-1 during his evidence stated that the accused drove his vehicle in a speedy manner. PW-1 has not stated that the accused drove his vehicle in a rash and negligent manner. 9. PW-1 during chief examination stated that he saw the occurrence. But during his cross examination he stated as follows:- Others Language 10. On careful perusal of the evidence of PW-1, it is clear that he has not seen the occurrence. Hence no much importance can be given to the evidence of PW-1. 11. PW-2 and PW-7 are cited as eye witnesses. PW-2 is the Conductor of the offending vehicle. PW-2 deposed that on 23.10.2007 at 2.50 hours, the accused and he proceeded from Madurai to Thanjavur at about 3.30 am and when their bus reached Thirukanurpatti near Petrol Bunk, the accused dashed his vehicle on the lorry, which was parked on the left side of the road and the accused has slept at the time of occurrence and the accident was only due to the accused and he sustained injury in the occurrence and some other persons also sustained injuries and they were taken to the Government Hospital, Thanjavur, for taking treatment and PW-1 gave complaint statement to the police. 12. PW-2 stated during his chief examination that at the time of occurrence, the accused has slept. But it was not spoken by PW-1 either in his complaint or in his evidence. PW-2 stated in his chief examination that at the time of occurrence, the accused has slept and due to it, the accident occurred. But PW-2 during his cross examination stated as follows:- Others Language 13. In this case, PW-2 is the Conductor. It is his bounden duty to avoid the accident by way of making the driver not to sleep. But PW-2 stated that at the time of accident, the accused has slept. But PW-2 during his cross examination stated as follows:- Others Language 13. In this case, PW-2 is the Conductor. It is his bounden duty to avoid the accident by way of making the driver not to sleep. But PW-2 stated that at the time of accident, the accused has slept. Hence, it shows the negligent on the part of the Conductor. PW-2 has also responsible to avoid the accident. 14. On careful perusal of the cross examination of PW-2, it reveals that the accused has not slept. PW-1 also stated during his cross examination that at the time of the occurrence, the Conductor sat in his seat near the driver seat. Hence, the evidence of PW-2 stating that the accused has slept at the time of occurrence and only due to his negligent, the accident occurred is not at all acceptable. 15. The learned counsel appearing for the petitioner/accused argued that the lorry was parked on the side road without any signal and hence, the accused dashed his vehicle on the back side of the lorry and therefore, the accident was not occurred due to the rash and negligent driving of the accused and prays that the accused is entitled to acquittal. 16. In this case PW-7 is cited as eye witness. PW-7 deposed that on 22.10.2007 at 2.30 pm, he, his wife and son travelled in the offending vehicle and when the bus reached Thirukanurpatti petrol bunk, due to rash and negligent driving of the driver, he dashed against the parked lorry and due to it, he, his wife and son sustained injuries. 17. PW-1 and PW-2 have not stated that the lorry was parked with signal, but PW-3 stated that he saw the lorry that there was blinking light on the back side of the parking lorry. But the Investigating Officer PW-14 stated during his cross examination as follows:- Others Language 18. Hence, on careful perusal of evidence of PW-14, it reveals that no reflecting sticker was fixed on the back side of the lorry. Further, PW-7 admitted in his cross examination that all the interior lights were switched off inside the bus. Hence, it is not possible for PW-7 to see the occurrence. Therefore, the evidence of PW-7 stating that he saw the lorry with reflecting light on the back side of the lorry is not at all believable. Further, PW-7 admitted in his cross examination that all the interior lights were switched off inside the bus. Hence, it is not possible for PW-7 to see the occurrence. Therefore, the evidence of PW-7 stating that he saw the lorry with reflecting light on the back side of the lorry is not at all believable. Further, PW-1 and PW-2 have not stated during their evidence that the accused drove his vehicle in a rash and negligent manner. 19. It is mainly argued on the side of the revision petitioner/accused that the oral evidence of the prosecution witnesses was not proved the rash and negligent driving of the accused and there are contradictions between the oral evidence of the prosecution witnesses and there can be no general presumption that a person should have driven a vehicle in a rash and negligent manner, merely because there was an accident. 20. At this juncture, it is relevant to refer the decision of this Court in M. Subramani vs. State Rep. by Inspector of Police, Edapadi Police Station, Salem, 2017 (1) LW (Crl) 160, wherein this court has held as follows:- "19. In State of Karnataka vs. Sathish, (1998) 8 SCC 493 , in a road accident where the accused was prosecuted under Section 304-A IPC, one of the witness had stated that the bus drive came driven the bus at a high speed. The Hon'ble Apex Court held that it would not satisfy the requirement of the driver driving the vehicle in a rash and negligent manner as required under Section 304-A IPC and acquitted the accused." 20. In this respect, the following observations made by the Hon'ble Supreme Court in State of Karnataka vs. Sathish (supra) are relevant here to note:- 3. Both the Trial Court and the Appellate Court held the respondent guilty for offences under Sections 337, 338 and 304-A IPC after recording a finding that the respondent was driving the truck at a "high speed." No specific finding has been recorded either by the Trial Court or by the First Appellate Court to the effect that the respondent was driving the truck either negligently or rashly after holding that the respondent was driving the truck at a "high speed" both the Courts pressed into aid the doctrine of res ipsa loquitur to hold the respondent guilty. 4. 4. Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed." "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances, of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur There is evidence to show that immediately before the truck turned turtle, there was a big jerk It is not explained as to whether the jerk was because of the uneven road or mechanical failure The Motor Vehicle Inspector who inspected the vehicle had submitted his report That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution This is a serious infirmity and lacuna in the prosecution case. 21. Subsequently, in Abdul Subhan vs. State (NCT of Delhi), 2007 Cri. L.J. 1089, in a road accident case for an offence under Section 304-A IPC, the only available evidence of an Head Constable is that the bus driver had driven the bus fastly. The Delhi High Court relying on the Hon'ble Apex Court decision in State of Karnataka vs. Sathish (supra) held that the bus driver cannot be held to have drove the bus in a rash and negligent manner. 22. In State vs. Avadh Kishore, Crl. L.P. No. 213 of 2007 dated 30.1.2009 (Delhi High Court), the Delhi High Court reiterated its earlier view in Abdul Subhan (supra) 23. Recently in Puttaiah @ Mahesh vs. State by Rural Police Crl. 22. In State vs. Avadh Kishore, Crl. L.P. No. 213 of 2007 dated 30.1.2009 (Delhi High Court), the Delhi High Court reiterated its earlier view in Abdul Subhan (supra) 23. Recently in Puttaiah @ Mahesh vs. State by Rural Police Crl. Review Petition No. 1317 of 2010 dated 4.3.2016 (Karnataka High Court), the Karnataka High Court held as under: "In this view of the matter, both the Trial Court as well as the First Appellate Court have not assessed the oral and documentary evidence in right perspective Both the Courts should have navigated through the evidence of material witnesses cautiously Glaring inconsistencies have been brushed aside as minor variations They have adopted wrong approach to the real state of affairs and have not properly scanned the evidence Both the Courts have forgotten that the initial burden was on the prosecution to establish the charge of rashness or negligence beyond reasonable doubt Thus, the judgments of both the Courts suffer from perversity and illegality Hence, this Court is of the opinion that the revision petition is to be allowed." 21. On coming to the instant case on hand, the prosecution witnesses have not stated that the accident occurred due to the rash and negligent driving of the accused. 22. For all the reasons stated above, this court is of the considered view that the prosecution has not proved the case beyond reasonable doubt. 23. In the result, this Criminal Revision is allowed. The impugned judgment of conviction and sentence are set aside. The revision petitioner/accused is acquitted of the charge levelled against him. The bail bond if any executed by him shall stand cancelled and the fine amount if any paid by him shall be refunded to him.